Lehrmann v TEN & Wilkinson – a most consequential trial

Andrew L. Urban.

It began on November 22, 2023 and will continue for another fortnight from December 5, 2023: the defamation trial in which the respondents (TEN & Lisa Wilkinson) are trying to prove to the court that Bruce Lehrmann really did rape Brittany Higgins. They claim they did not defame him when publishing rape allegations against a legally innocent man. And justified under qualified privilege because it was a matter in the public interest. The mix of politics, the media and the law – not least the controversy around the ACT’s DPP and the Sofronoff inquiry – makes it a most consequential trial.

As I watched the entire trial proceedings in the Federal Court to date – along with thousands of others – (on the livestream from the 22nd floor of the Court building in Sydney) I saw it in the context of my writings over the past decade where the trial’s elements touched on so many of the issues that I have written about on this blog. And the trial regurgitates aspects of the case that raise a number of significant questions.

Lawyer and columnist Janet Albrechtsen at The Australian writes (2/12/2023): The question we must all wrestle with is how serious #MeToo allegations should be dealt with.

#MeToo advocates may have been delighted at the momentum started by The Project interview with Higgins, and unconcerned about any damage to Lehrmann. Critics, on the other hand, worry that the ends cannot justify the means, that the wider public interest in maintaining a defendant’s presumption of innocence bled away every time Higgins was celebrated for her bravery, treated as a victim by political and media supporters, not to mention by the ACT Victims of Crimes Commissioner, and promoted as the face of #MeToo in Australia.

Whatever your view on this larger issue, it cannot be denied this case became a media, political and legal circus – and a travelling one at that – from federal parliament to every part of the media, to the ACT Supreme Court to the ACT board of inquiry into the handling of the criminal trial and now the Federal Court. All because of one early decision by Higgins. Telling her story in the media before she had formalised a police complaint had the effect of unleashing a baying crowd free from the constraint of the rules against pre-trial publicity.

With the first half of the trial taken up by Bruce Lehrmann and Brittany Higgins in the witness box, examined and cross examined to test their credibility and truthfulness, trial judge Michael Lee was faced with the labyrinthine problem of untangling truths from lies. Both witnesses admitted to several lies and claimed bad memory. Lehrmann was adamant he did not rape Higgins. Higgins was adamant he did. She said … he said.

When Steven Whybrow (counsel for Lehrmann) suggested to Higgins that she was motivated to be vindicated by the prospect of money from her book deal with Penguin, she exclaimed “If I ever actually finish the book, I will donate all $200,000 whatever to charity. I don’t care about the money.” But then some might think that she can afford to forego that money, having already pocketed an advance of over $100,000 as well as the estimated $2.5 million# from the Government … for reasons still unexplained.

The second part of the trial will focus on the role of the media. TEN and Wilkinson are relying on qualified privilege in airing the allegation in the way they did some two years after the relevant events. Wrote Albrechtsen, “We will learn whether they acted professionally, checking sources, distinguishing between allegations, suspicions and proven facts, and whether it was in the public interest for them to air The Project interview.” And to air it at that time, “expeditiously” (see below), without a response from Lehrmann, who had not responded to emails sent a couple of days before The Project aired.

As to the upcoming defence arguments about qualified privilege, the court will consider the following factors in determining whether the publisher has acted reasonably:

  • the seriousness of any defamatory imputation carried by the matter published,
  • the nature of the business environment in which the defendant operates,
  • the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
  • whether it was appropriate in the circumstances for the matter to be published expeditiously, and
  • any other steps taken to verify the information in the matter published

The trial continues on Tuesday, December 5, 2023

# On Tuesday December 5, 2023, Higgins advised the court under cross examination that she personally received $1.9 million of the total settlement of $2.3 million.

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6 Responses to Lehrmann v TEN & Wilkinson – a most consequential trial

  1. D. Harris says:

    Coincidence and tendency sexual assault trials work on a similar basis. No DNA needed no investigations , hearsay allowed, alibi disallowed. Witnesses can be treated poorly, defence have hands tied behind their backs.

    Guilty until proven innocent. Accuser named as victim, man alleged perpetrator.section 22b puts men in jail to protect the alleged victim from alleged perpetrator before the trial if sentence will be more than 2 years I believe.

    Victim has court support, ptsd dogs, escorted to court and can appear by Avl. Accused gets escorted to court by 2 prison guards, dressed in prison greens, and locked in cells at court for hours due to delays.

    Lucky if you can find a man in the team for the alleged victim.
    Female detectives, female DPP, female case workers, female solicitor, psychological report by female. Not to.mention the witnesses.

    I feel sorry for men facing trials in a system which is being corrupted by agendas n9t facts, alibi, DNA just opinions.

  2. moni says:

    How does a trial for defamation now become a rape trial?

    The same happened with BRS.

    I don’t understand how the system allows the narrative to segue to other matters!!

    One would assume the matter would be clear, “did LW & Channel 10 defame BL using The Project platform and the Logies speech before there was any trial and before BL was named? Discovery found the 6hrs or so of scheming and underhanded preparation that went into the “fake” interview, which is quite damning in my view. But does that amount to defamation?

  3. James Plevick says:

    It’s just another example of how the Common Law has been usurped by Feminist Jurisprudence, which according to US academic, Stephen Baskerville, is about nothing if not the denial of due process.
    He is eminently readable, has written a magnificent book on the outrageous divorce industrial complex (another feminist construct) now rampaging through the west with disastrous consequences, and another on sexual politics.

  4. Don Wakeling says:

    It’s a blueprint for get rich quickly. You don’t need any proof nor any capital investment. Just allege you’v been raped and the Government rushs to give you over $2,000,000. All from the taxpaying public. But.oh no we can’t be told how the decision was made…that’s a secret process.
    How did we ever get to this?

    • John S says:

      I reckon we got to this through: Social media, left wing uni campus politics & just plain bad genetics! Some seem to have a short circuit in their top paddock! They sure aren’t much for learning either! They just shout from the roof tops & wonder why we’re not impressed! It only harms their causes too!

      More seriously, it’s just politics with some tripping upon the new PC/wokeness as a great way to garner votes from well-meaning (perhaps) but blinkered voters. I guess some just find the temptation to play division politics too tempting to resist. Take Albo, certainly not a Bob Hawke (Bob was always out to unite us). I dislike voting because all we get are such players instead of true leaders now. ALP/Coalition: please give us better candidates to vote for! Stop the PC rot!

  5. John S says:

    So much focus on this one issue, wonder why? So many egos at stake!

    It comes down to this: evidence! Where is it? It’s his word vs hers, little else. Not saying I know who did or didn’t do what, just where is the evidence? Higgins claims she was bruised & saw an off duty doc, yet none can be found to vouch! She may have been bruised, but proof of it! Lacking. We must work with what is found, not simply claimed.

    Otherwise there’d definitely be UFOs out there, Loch Ness monster would be real, the world would be flat & we’d not have gone to the moon, according to claims!

    Now wait for all the trolls to hit the site with claims! They’re simply being bullies!

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